General and health care proxy
Granting a general and/or health care proxy enables you to authorize a trusted person to act on your behalf or to make decisions on your behalf if you are no longer able to do so yourself.
Although no specific form is generally required for the granting of a power of attorney (Section 167 (2) BGB), the choice of form has a significant impact on the effectiveness and acceptance of the power of attorney.
For certain areas of decision-making, such as medical measures, custodial placement or coercive medical measures, the power of attorney must be in writing; these measures must also be expressly named in the power of attorney (Section 1820 (2) BGB).
If you own real estate, the land registry requires all declarations to be in officially notarized form. This means not only purchase agreements (Section 311b BGB) but all transactions, such as the ordering or deletion of usufruct or residential rights. In some cases, simple notarized powers of attorney are sufficient, but these are disadvantageous for measures that are not only short-term.
The safest option is to have your power of attorney notarized. This also involves establishing the legal capacity (§ 11 Para. 1 BeurkG) of the principal, which is occasionally doubted by the land registry. In addition, notarized powers of attorney have a higher evidentiary and testimonial value. They generally enjoy a high level of acceptance. In addition, notarization enables comprehensive advice to be given and ensures that your wishes and instructions are clearly stated.
Another advantage of notarized powers of attorney is that new copies can be issued if they are lost, which is not possible with “only notarized” powers of attorney.
A transmortal power of attorney, i.e. one that is valid beyond death, helps enormously in the settlement of an estate. This makes it possible, for example, to sell a property without a certificate of inheritance.
A health care proxy is an essential part of your personal pension planning.
If there is a suspicion of misuse of the power of attorney, a court can order that the authorized representative may temporarily not exercise the power of attorney granted to them. This means that an effective power of attorney can be “overridden” at short notice in the event of a suspicion of abuse that has not yet been confirmed, without having to revoke it immediately. If the suspicion is dispelled, the power of attorney is not lost.